Judicial review in immigration cases

Transcription

1 Judicial review in immigration cases Judicial review is a process of challenging a decision of the state or a public body in the High Court, on the basis that the decision is not one that the public body should have made. There are four main bases on which it can be brought: illegality, irrationality, procedural impropriety and breach of human rights. The four bases for judicial review are: Illegality: an assertion that the decision (or, on occasion, lack of decision) is not lawful. This might be because the wrong law has been applied, or because findings were wrongly made. Irrationality: this is a high test and the threshold is whether the decision was Wednesbury unreasonable. Procedural impropriety: if the decision maker has followed a wrongful procedure to arrive at their decision. Breach of human rights: where the decision would contravene the UK's obligations under the Human Rights Act 1998 or the European Convention on Human Rights. To succeed in judicial review it is first necessary to exhaust alternative remedies. If there is a right of appeal then an application for JR will not succeed. There is a three-month time limit to lodge a judicial review, and the pre-action protocol outlined in the Civil Procedure Rules must be followed. The outcome of a JR is rarely a grant of status ordinarily the issues will be ventilated before a fact finding tribunal but the court can grant a quashing order, quashing a decision, a mandatory order requiring the Secretary of State to perform a certain action such as granting a right of appeal, a prohibiting order preventing an action such as the removal of the Claimant from the UK, and also has the power to award damages or costs. This article looks at the main uses of judicial review in immigration cases. This is not an exhaustive list, but should serve as a basic guide to appropriate cases for judicial review. One Paper Buildings 2013 Page 1

2 No right of appeal Where an application is refused with no right of appeal, or with a right of appeal exercisable only from outside the UK, a judicial review may lead to the decision being quashed and a right of appeal provided. One common reason for restricting the right of appeal is certification. This applies when the SSHD believes that a claim is 'clearly unfounded,' and should therefore not be granted a right of appeal. Claims for asylum may be certified, as are human rights claims where the issues have previously been heard and / or the removal is to a safe third country under the Dublin Convention. The relevant provision under the Nationality, Immigration and Asylum Act 2002 is s.94(2) which provides that: A person may not bring an appeal to which this section applies in reliance on section 92(4)(a) if the Secretary of State certifies that the claim or claims mentioned in subsection (1) is or are clearly unfounded. It may also apply to a fresh claim for asylum under paragraph 353 of the Immigration Rules, which provides that: When a human rights or asylum claim has been refused and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content: i) had not already been considered; and ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection. If the decision maker finds that the decision is not 'significantly different' or that the claim does not raise a realistic prospect of success, then it will not be treated as a fresh claim and will carry no right of appeal. In WM & AR [2006] EWCA Civ 1495 it was said that when considering certifying an asylum / human rights claim as 'clearly unfounded,' The question is not whether the Secretary of State himself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an adjudicator, One Paper Buildings 2013 Page 2

3 applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return: see 7 above. The Secretary of State of course can, and no doubt logically should, treat his own view of the merits as a starting-point for that enquiry; but it is only a starting-point in the consideration of a question that is distinctly different from the exercise of the Secretary of State making up his own mind. Similarly, if a human rights claim is made where the Dublin Convention applies, the Secretary of State may well certify it as being 'clearly unfounded' pursuant to s.5(4) of Schedule 3 to the Asylum & Immigration (Treatment of Claimants, etc) Act This reads: The person may not bring an immigration appeal by virtue of section 92(4)(a) of that Act in reliance on a human rights claim to which this sub-paragraph applies if the Secretary of State certifies that the claim is clearly unfounded; and the Secretary of State shall certify a human rights claim to which this sub-paragraph applies unless satisfied that the claim is not clearly unfounded. This is a higher test than that under the 2002 Act, as it provides that the SSHD shall certify rather than simply allowing her to do so. However, the test is similar: the Secretary of State may not treat her own decision as the final arbitration; she has to look at whether a court could allow the appeal. In IM, Re Judicial Review [2008] NIQB 14 (8 February 2008) it was said that The question for the Secretary of State was whether the allegation by the applicant that there was a breach of his human rights was so clearly without substance that it was bound to fail. This Northern Ireland case relates to exactly the same provision of the 2004 Act, and fits within the legal framework of England & Wales governing certification. A claim should not be certified even if the Defendant thinks it is a poor case if it is arguable. In R (Shayanth) v SSHD [2009] EWHC 1208 (Admin) the court examined the test for a 'clearly unfounded' decision under s.5(4) of Schedule 3 of the 2004 Act, and confirmed that: Clearly, the claim need not be clearly unfounded even though the decision maker has reached the conclusion, on balance, that he or she should not accede to it. If the SSHD has certified a claim where it is considered that it is in fact arguable, then the decision can be judicially reviewed. The court may then agree to quash the certification and to require the SSHD to grant a right of appeal. This has the advantage that the Claimant can then put forward his appeal within the UK. One Paper Buildings 2013 Page 3

4 The other common situation in which there is no right of appeal, increasingly seen at the moment, is where the Defendant refuses an extension of leave to remain but fails to make an 'immigration decision' which would attract a right of appeal, leaving the Claimant in limbo whereby they have no leave and have been refused, but cannot pursue an appeal until they get an immigration decision, which could take months or years. The leading cases on this are Mirza & Ors [2011] EWCA Civ 159 and Daley-Murdock [2011] EWCA Civ 161. In Mirza, the applicants had all made an in-time application. The court held that it was unlawful to make them wait for a removal decision. This was not held to be extended to all applicants but to those involved in this case: there may be cases in which segregation of the two decisions is nevertheless justified. But no such justification has been advanced in any of the present cases: they appear to fall into a gap which in law ought not, at least in such cases as these, to be there. In Daley-Murdock the applicant had not made an in-time application and she had overstayed, deliberately, for some considerable time. This was held to be a justifying factor which meant that in her case the delay in providing a removal decision was lawful: she was at no more of a disadvantage than she had been previously. It was however separately held that the decision had been wrong on Article 8 grounds. Broadly speaking therefore the courts divide the removal decision cases into in-time and outof-time applications. Refusal to make a timely removal decision is usually unlawful in the first category and usually lawful in the second, although there may be factors which make the delay unlawful such as children being involved. JR in these cases can often be used to force a decision from UKBA. When faced with an application for judicial review they will often back down rather than run the risk of being made to pay costs or damages, so if a client is simply awaiting an immigration decision then a JR, threatened or actual, can push them into providing one. Unlawful detention The legal framework provides for the detention by the state of immigration detainees, other than pursuant to a custodial sentence imposed by the criminal courts. Paragraphs 8 and 9 of Schedule 2 to the 1971 Act provide powers to give directions for the removal of persons who have been refused leave to enter the United Kingdom and illegal entrants. Under the heading "Removal of persons refused leave to enter and illegal entrants", paragraph 9(1) of Schedule 2 provides: One Paper Buildings 2013 Page 4

5 "Where an illegal entrant is not given leave to enter or remain in the United Kingdom, an immigration officer may give any such directions in respect of him as in a case within paragraph 8 above [relating to "[a] person arriving in the United Kingdom [who] is refused leave to enter] are authorised by paragraph 8(1)." Paragraph 16 of Schedule 2, under the heading "Detention of persons liable to examination or removal", provides: " (2) If there are reasonable grounds for suspecting that a person is someone in respect of whom directions may be given under any of paragraphs 8 to 10A or 12 to 14, that person may be detained under the authority of an immigration officer pending (a) a decision whether or not to give such directions; (b) his removal in pursuance of such directions. ". Paragraph 2 of Schedule 3 to the 1971 Act, under the heading "Detention or control pending deportation", provides: " (2) Where notice has been given to a person in accordance with regulations under Section 105 of the Nationality, Immigration and Asylum Act 2002 (notice of decision) of a decision to make a deportation order against him, and he is not a detained person in pursuance of the sentence or order of a court, he may be detained under the authority of the Secretary of State pending the making of the deportation order. (3) Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom (and if already detained by virtue of subparagraph (1) or (2) above when the order is made, shall continue to be detained unless he is released on bail or the Secretary of State directs otherwise)." Rule 9(1) of the Detention Centre Rules 2001 provides: "Every detained person will be provided, by the Secretary of State, with written reasons for his detention at the time of his initial detention, and thereafter monthly." Article 5 of the European Convention on Human Rights enshrining the right to liberty and security prohibits detention save in several specified circumstances and in accordance with a procedure prescribed by law. Under Article 5(1)(f) the "detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition" must be "lawful". Thus the question whether a person's immigration detention is lawful under Article 5 corresponds to the question whether, in accordance with domestic law, he has been unlawfully imprisoned. The main means of challenge to unlawful detention is now judicial review. This has largely come to replace a writ of habeas corpus, and following the implementation of the Human One Paper Buildings 2013 Page 5

6 Rights Act 1998, can now include a challenge under Article 5, the right to liberty and security. This is a different test to an immigration bail application. With a bail application, the test is whether the detainee is likely to abscond, commit offences or fail to report effectively, a risk test which will be considered in the context of available accommodation and the possibility of sureties. This means that a high risk detainee, such as one who has previously absconded after being granted temporary admission, or who has a history of offences of dishonesty, may find themselves in immigration detention for an excessively long period. There is no set time limit as to when detention becomes excessive, but various factors including the detainee's mental or physical health, and the likelihood of them being removed from the UK imminently, will affect this. The primary restrictions on the length of detention are set out in R (Hardial Singh) v SSHD [1983] EWHC 1 (QB): Although the power which is given to the Secretary of State in paragraph 2 to detain individuals is not subject to any express limitation of time, I am quite satisfied that it is subject to limitations. First of all, it can only authorize detention if the individual is being detained in one case pending the making of a deportation order and, in the other case, pending his removal. It cannot be used for any other purpose. Secondly, as the power is given in order to enable the machinery of deportation to be carried out, I regard the power of detention as being impliedly limited to a period which is reasonably necessary for that purpose. The period which is reasonable will depend upon the circumstances of the particular case. What is more, if there is a situation where it is apparent to the Secretary of State that he is not going to be able to operate the machinery provided in the Act for removing persons who are intended to be deported within a reasonable period, it seems to me that it would be wrong for the Secretary of State to seek to exercise his power of detention. This was qualified in R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888, [2003] INLR 196 which encapsulates the principles as follows: i) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose; ii) The deportee may only be detained for a period that is reasonable in all the circumstances; One Paper Buildings 2013 Page 6

7 iii) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period, he should not seek to exercise the power of detention; iv) The Secretary of State should act with reasonable diligence and expedition to effect removal. Judicial review of ongoing detention is a crucial tool when it comes to the release of an immigration detainee who may have been in immigration detention for a lengthy period. Whether or not they are likely to abscond becomes of less importance in judicial review proceedings where the key question is whether or not the detention itself is unlawful. If the SSHD is not able to effect removal within a reasonable time, detention becomes unlawful and potentially the Claimant will be entitled to damages for unlawful detention. There is one potential hazard attached to judicial review of unlawful detention, and that is that the SSHD may respond by taking steps to remove the Claimant, thereby making the detention lawful. For some claimants, who seek only to be removed or released, that is not a problem, but those who were only hoping for release may find that they have inadvertently speeded up their own removal. Care should be taken in advising on JR for this reason. Speedy removal is less likely where the Claimant is from a country such as Iran which refuses to accept emergency travel documents, or a country to which enforced returns are not presently possible. Family visits As of 25 June 2013, the right of appeal for family visitors was removed 1, meaning that an applicant who is refused a visa to visit a family member will have no right of appeal to the Tribunal. Appeals can be brought only on human rights or race relations grounds, which means that if a decision is simply wrong, there is no right of appeal. Although the applicant will be entitled to reapply as often as they like paying the appropriate fee each time the existence of a previous refusal is likely to trigger more caution and lead to a spiral where repeat applications lead to repeat refusals and the cycle seems unlikely to be broken. If an application is refused because insufficient documentation was provided then the applicant should of course reapply. However, we know from the Chief Inspector's Report on Entry Clearance Decision Making 2 that on far too many occasions, the decision of the ECO One Paper Buildings 2013 Page 7

8 is simply wrong. One of the criticisms put forward by the Chief Inspector was that some posts were refusing applicants for not having provided evidence that was never asked for: I was particularly concerned to find a significant proportion of cases where applicants were refused entry clearance for failing to provide information which they could not have been aware of at the time of submitting their applications. This was unfair. I found this in 235 cases, representing 16% of the sample. The Chief Inspector also looked at the way evidence was assessed: In 483 cases, representing 33% of the sample examined, I found errors in the way evidence was assessed by entry clearance officers; and in 135 cases, or 9% of the sample, I consider that those errors potentially undermined the decision to refuse entry clearance. This means that in around 10% of cases, a decision has been made which is arguably procedurally improper or Wednesbury unreasonable. With no available right of appeal, and a reapplication vulnerable to the same flaws in decision making, many families will opt for a JR of the decision, which is likely to be the only way to ensure that a wrongful decision is overturned. It goes without saying that JR should be a recourse only in cases where the decision can be shown to be clearly wrong. Such cases might include those where it is said that particular information was not provided when in fact it was, or those where the applicant's immigration history has been wrongfully recited. Such errors are not uncommon. JR should not be used where the decision is merely arguable, or where a human rights appeal is available. However, it will be a tool of last resort which will increasingly be needed now that appeal to the Tribunal is no longer available. The 'new' Article 8 Since July 2012, when the Immigration Rules were changed, purportedly to cover the whole of Article 8 within the Rules, UKBA have been refusing applications which do not meet the Rules but failing to consider the existing Strasbourg jurisprudence. This is quite clearly unlawful; The correct approach to assessing Article 8 applications made under Appendix FM of the Immigration Rules was set out in Green (Article 8 new rules) [2013] UKUT 254 (IAC) where Nagre was endorsed. In Nagre v SSHD [2013] EWHC 720 (Admin) the Administrative Court approved the guidance of the Upper Tribunal in Izuazu [2013] UKUT 45 (IAC) in turn endorsing the two stage approach recommended by the Upper Tribunal in MF (Article 8 new rules) Nigeria [2012] UKUT 393 (IAC): One Paper Buildings 2013 Page 8

9 The new immigration rules set out a number of mandatory requirements relating to claims reliant on Article 8 ( Article 8 claims ) which make clear that if such requirements are not met, the Article 8 claim under the rules must be refused. They also contain related provisions which confer discretion but it is discretion to grant leave in response to an Article 8 claim only if the new mandatory requirements are met. Whenever the new rules have application judges are obliged to consider whether an appellant can show he meets the relevant requirements (s.86(3)(a) of the Nationality, Immigration and Asylum Act 2002). Where the new rules afford some related discretion, judges are obliged to consider whether that discretion should have been exercised differently (s. 86(3)(6)). However, what judges are doing when they are conducting this exercise is simply applying the rules: the rules are the rules: see paragraph 10 Mahad [2009] UKSC 16. The fact that these rules in part refer expressly to Article 8 or to certain Article 8 concepts is incidental. The fact that as a result of these changes the rules are longer and incorporate some of the vocabulary of Article 8 makes no difference. Because for most purposes the immigration rules must be given legal effect (see Odelola [2009] UKHL 25), their requirements for applicants making an Article 8 claim to show exceptional circumstances or insurmountable obstacles are to be understood as legal requirements in the same way as any other mandatory requirements of the rules. However, the new rules only cover Article 8 claims brought under some, not all, Parts of the Rules and only accommodate certain types of Article 8 claims. Even if a decision to refuse an Article 8 claim under the new rules is found to be correct, judges must still consider whether the decision is in compliance with a person s human rights under s.6 of the Human Rights Act ( see s.84(1)(c), (g) and (e) and s.86(2) and (3) of the 2002 Act) and, in automatic deportation cases, whether removal would breach a person s Convention rights (s.33(2) UK Borders Act 2007). Thus in the context of deportation and removal cases the need for a 2 stage approach in most Article 8 cases remains imperative because the new rules do not encapsulate the guidance given in Maslov v Austria App no.1683/03 [2008] ECHR 546, which has been endorsed by the higher courts. When considering Article 8 in the context of an appellant who fails under the new rules, it will remain the case, as before, that exceptional circumstances is not to be One Paper Buildings 2013 Page 9

10 regarded as a legal test and insurmountable obstacles is to be regarded as an incorrect criterion. The effect of this is that any claim made under Appendix FM must first be examined to assess whether it complies with the Rules as set out in Appendix FM, and then examined under Article 8 ECHR which remains a separate test. The usual formula for considering Article 8 remains Razgar [2004] UKHL 27 which set out the following test: 1. Will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect for his private or (as the case may be) family life? 2. If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8? 3. If so, is such interference in accordance with the law? 4. If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others? 5. If so, is such interference proportionate to the legitimate public end sought to be achieved? Where the SSHD has decided an Article 8 claim only under the new Rules, and not under existing caselaw, there will be a challenge available. Where there is a right of appeal, this can be ventilated before the Tribunal, but where there is no right of appeal granted, the Claimant will be able to challenge the failure to address the existing caselaw by way of judicial review. This in turn can lead to a wrongful decision being quashed, or at least a right of appeal being granted. Removal directions Another common use of JR in immigration cases is to challenge the setting of removal directions. There are numerous reasons that such a challenge might be brought: where the directions are to the wrong country, or where the Claimant has an outstanding application or appeal, for example. An overstayer who nevertheless has a partner or child(ren) in the UK may be detained and have removal directions set before they are able to submit a human rights claim. They may have put in a claim only to have it refused and certified. One Paper Buildings 2013 Page 10

11 A challenge to removal can be extremely effective, as an emergency JR will be a means to stop removal of a claimant, with an injunction if necessary. However, solicitors preparing such claims should ensure that they balance the need for immediate action against the need to go through the file carefully. Facing removal and with a last-minute application at stake, some claimants will be economical with the truth about previous applications, and solicitors who put in claims which turn out to be unmeritorious may find themselves at the High Court attempting to explain why they did so. Solicitors dealing with emergency JR should be aware of the case of R (Hamid) v SSHD [2012] EWHC 3070 (Admin) where the court warned that: If any firm fails to provide the information required on the form and in particular explain the reasons for urgency, the time at which the need for immediate consideration was first appreciated and the efforts made to notify the defendant, the court will require the attendance in open court of the solicitor from the firm who was responsible, together with his senior partner. It will list not only the name of the case but the firm concerned. Non-compliance cannot be allowed to continue. That will not be the only consequence of failing to complete the requirements set out in this form. First, one consequence may be that, if the form is not completed, the judge may simply refuse to consider the application. Second, if reasons are not properly set out or do not explain why there has been delay or the reasons are otherwise inadequate, the court may simply refuse to consider the application for that reason and that reason alone... These late, meritless applications by people who face removal or deportation are an intolerable waste of public money, a great strain on the resources of this court and an abuse of a service this court offers. The court therefore intends to take the most vigorous action against any legal representatives who fail to comply with its rules. If people persist in failing to follow the procedural requirements, they must realise that this court will not hesitate to refer those concerned to the Solicitors Regulation Authority. The court went on to actually name-and-shame solicitors in R (Awuku) v SSHD [2012] EWHC 3298 (Admin) where the issue was non-disclosure of previous relevant facts. Where a claimant has already failed in their claim, has nothing new and is just trying to stall for time, the courts are likely to be unimpressed with the application. This should not deter solicitors from making meritorious applications. There will inevitably continue to be cases in which it was not reasonably practicable to apply for JR any earlier, if only because the Claimant was picked up by police on a routine stop and had not applied for One Paper Buildings 2013 Page 11

12 any leave before this, yet does have a good claim. In such cases, solicitors will need to try to apply as early as they can and to be in full possession of the facts. Summary Judicial review is a vital component in the immigration lawyer's toolbox. It provides a means to challenge the State on a number of issues which are no longer, or never were, appealable to the Tribunal. It also provides valuable accountability for UKBA. Practitioners should be aware of the negative possibilities raised by Hamid, although these are generally avoidable by careful preparation. They should also be aware that the general civil rules apply on costs, so an unmeritorious application can see the client liable for the legal costs of the other side. On the positive side, where a claim is meritorious, the defendant should pay the claimant's costs. A large number of judicial reviews will be settled before they reach the permission stage. This tends to mean that the defendant, usually UKBA, has conceded the point and taken steps to remedy the defective decision. The listed uses for JR in immigration claims above are not exhaustive, but should give an overview of common grounds for JR and the diverse ways in which JR can be used to benefit immigration clients. Julian Norman Chambers of Michael Hubbard Q.C. and Karim Khail Q.C. ONE PAPER BUILDINGS One Paper Buildings 2013 Page 12